State v. AvilaState v. Avila
FACTS
At about 10:15 p.m. on October 4, 1987 James and Sherry Henry returned to their apartment after an evening out. As they got out of the car and walked toward their front door they were approached by two armed men later identified as the defendant, Jorge Avila, and his brother Melecio. One of the perpetrators took James Henry‘s watch and wallet while the other took Sherry Henry‘s jewelry.
After robbing the Henrys at gunpoint outside of the apartment, the Avilas ordered James Henry to open the door. The defendant took Sherry Henry upstairs to the master bedroom and forced her to lie down on the floor while Melecio stayed in the den with James Henry. Both Avilas took various items from the Henrys’ home. Mr. Henry was taken upstairs and made to lie down beside his wife. The Avilas tied up the Henrys with electrical cords and
Also stolen in the robbery was a payroll check made out to James Henry. That check was found subsequently at the job service office on Airline Highway in Jefferson Parish. Cooperation with the Jefferson Parish officials and composite drawings made in accordance with the Henrys’ description of the perpetrators led to the arrest of the defendant and his brother.
By his first assignment the defendant argues that the trial court erred in denying the motion to suppress the photographic line-up. The defendant argues that the line-up was unduly suggestive because the color of the background in his photograph is purple while the other photographs have gray backgrounds. He maintains the distinctive background focused the victims’ attention on the defendant.
The review of the constitutionality, and therefore the admissibility, of an out of court identification procedure requires a two-fold inquiry. Initially it must be determined if the police officials used an impermissibly suggestive procedure to obtain the identification. Secondly, if the procedure is suggestive, did it give rise, under all of the circumstances, to a substantial likelihood of irreparable misidentification? Mason v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Gordon, 504 So.2d 1135 (La.App. 5th Cir.1987).
It is the defendant who bears the burden of proving that the identification procedure used was unduly suggestive and that as a result there was a likelihood of misidentification. State v. Smith, 520 So.2d 1305 (La.App. 5th Cir.1988); State v. Gabriel, 542 So.2d 528 (La.App. 5th Cir. 1989). A photographic line-up is considered suggestive if the photographs display the defendant in such a manner that the witness’ attention is unduly focused on the defendant. State v. Smith, supra; State v. Gabriel, supra.
In support of his position defendant cites, Passman v. Blackburn, 652 F.2d 559 (5th Cir.1981), cert den, 455 U.S. 1022, 102 S.Ct. 1722, 72 L.Ed.2d 141 (1982). In Passman, the victim was shown an array of twelve photographs. All were black and white mug shots except that of the defendant which was a color front view photograph. In that case it was held that such a line-up carried inherent suggestivity and was improper.
We have examined the five photos in the instant case and do not agree that the line-up carried the same inherent suggestivity as did the line-up in Passman. In the case at hand all photos were the same size color mug shots giving both a front and side view of the subjects. Defendant‘s argument implies that the backgrounds on all of the photos except his were identical causing his photograph to be distinctive. That is not the reality. No two backgrounds are alike. Thus we do not find Passman, supra, controlling in this matter.
At the motion to suppress hearing both Mr. and Mrs. Henry testified. Both victims stated they identified the defendant because they recognized his facial features and both denied noticing anything unusual about the photographs which tended to suggest who should be selected. Under these circumstances, we do not find the photographic line-up to be unduly suggestive. This assignment is without merit.
By his second assignment of error the defendant asserts that his sentence was excessive. As previously stated he was sentenced to two concurrent thirty-three year sentences on the armed robberies, and to a ten year term on the aggravated burglary conviction to run consecutively to the other sentences.
The
Guidelines for sentencing are contained in
Additionally, particular justification is required when sentences for convictions arising out of a single course of criminal activity are made to run consecutively instead of concurrently.
In sentencing this defendant the trial court indicated that consideration was given to both aggravating and mitigating factors as mandated by
... the violation of the privacy of one‘s home by one who proceeds to tie, threaten, and rob is most serious and necessarily has a long lasting emotional impact on those who are victimized.
. . . . .
In this case the victims were tied and guns were held to their heads. No one knows what action a false move by the victims would have caused.
The trial court also stated that the seriousness of the crimes warranted the consecutive sentences. We find adequate compliance with the sentencing guidelines and no error in the imposition of consecutive sentences.
The trial court has great discretion in imposing sentence within the statutory limits. When the trial court has complied with the guidelines in
Upon review of defendant‘s sentence we note that the trial court failed to observe the twenty-four hour delay required by
When a defendant challenges the penalty imposed we cannot consider the violation of the twenty-four hour delay mandate contained in
We also note that, although implied, a sentence imposed on each of the two
For the foregoing reasons the defendant‘s convictions are affirmed. The sentences are vacated. The case is remanded to the district court for resentencing.
CONVICTIONS AFFIRMED; SENTENCE VACATED; CASE REMANDED.